On Wednesday, June 27, the Supreme Court of Wisconsin in Mayo v. Wisconsin Injured Patients and Families Compensation Fund upheld the $750,000 cap on noneconomic damages in medical malpractice judgments and settlements.[1] In reaching its decision, the court overturned a 2005 precedent, Ferdon v. Wisconsin Injured Patients Compensation Fund, which had struck down the previous noneconomic damages cap. [2]

History of Wisconsin’s Noneconomic Damages Cap

The first Wisconsin statute limiting medical malpractice noneconomic damages to $500,000 was enacted in 1975. The amount was increased to $1 million in 1986, later reduced to $350,000 in 1995. The $350,000 limit was judicially challenged twice by opponents – in 2000 and 2001 – and upheld both times by the court of appeals.

In 2005, the Supreme Court of Wisconsin struck down the statute ruling that the $350,000 limit on noneconomic damages violated the Wisconsin Constitution. According to the Ferdon Court, the cap unconstitutionally violated equal protection and due process of those victims whose damages exceeded the cap.

Shortly after the Ferdon decision in 2005, the Wisconsin Legislature enacted yet another statute limiting noneconomic damages at $450,000. The bill was vetoed by then Gov. Jim Doyle. A year later the Wisconsin Legislature enacted compromise legislation limiting noneconomic damages at $750,000, which was signed into law by Gov. Doyle.

Noneconomic Damages Cap Struck Down by Wisconsin Court of Appeals

The $750,000 cap was challenged by a patient who tragically lost all of her limbs when her physician failed to properly diagnosis a septic infection. The jury awarded the patient $16.5 million in noneconomic damages, which was reduced to $750,000 under the statutory limitation. The plaintiffs alleged that the statutory cap violated the Wisconsin Constitution’s due process and equal protections clauses. Citing Ferdon, the court of appeals held that the $750,000 limit was unconstitutional.

Wisconsin Supreme Court Decision

Since the Ferdon decision, the makeup of the Wisconsin Supreme Court has shifted so that judicial conservatives now hold a majority. Splitting along typical ideological lines, the court in Mayo upheld (5-2) the statutory cap of $750,000. According to the court:

"We conclude that rational basis is the proper standard by which to judge the constitutionality of [the $750,000 cap]; that [the cap] is facially constitutional and constitutional as applied to the Mayos; and that Ferdon erroneously invaded the province of the legislature and applied an erroneous standard of review. Accordingly, we reverse the court of appeals' decision, overrule Ferdon, and conclude that the $750,000 cap on noneconomic damages in medical malpractice judgments and settlements is constitutional both facially and as applied to the Mayos."

In her dissent, Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, argued the plaintiffs “will receive merely five percent of what a jury assessed was due for their noneconomic damages, while those less severely injured will get 100 percent.” The dissent further stated that it “makes no sense that those who are injured most get the least.”